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What Will Happen To My Pet If I Die?

How to provide security for your pet

Preparation of a will or trust should be thought of as a caring gift to someone you love. But what if that "special someone" is your family pet? In the course of estate planning, people are often concerned about what will happen to their pets when they die. Everyone is encouraged to prepare either a will or a trust as part of basic estate planning. It is a simple matter for pet owners to designate in their will someone to take care of their pets as well as a tidy sum to be reserved for the pet's expenses (food, vet bills, toys, etc.).

Special Trust

A surprising number of people ask whether they can leave money for the care of their companion animals. The answer is a resounding “Yes!” California law now provides for animal trusts that can actually be enforced. Animal trusts are no longer “honorary,” depending only on the honesty of the animal’s custodian. You can leave money for a particular animal and be certain that the terms of the trust, as established by you, will be carried out. You can designate that the money be used for feeding, veterinary bills, maintenance, and any other aspects of the animal's care. For example, does your dog require prescription dog food? Trust funds can be used to pay for the special food. You can also appoint a successor custodian to take care of the animal if the designated person can no longer care for the animal.

Under the California Probate Code, a trust for the care of an animal is a valid trust that can be enforced in court. An action to enforce a pet trust can be brought by “any person interested in the welfare of the animal.” This includes animal-care organizations such as the SPCA and similar non-profits that have as their principal activity the care of animals. In addition, the settlor (person creating the trust) may designate certain persons who will have the right to bring a court action to enforce the trust. If no one has been designated in the trust instrument, the court can even appoint a person to enforce the trust.

Generally, regular accountings are required, and copies must be given to any nonprofit charitable organization (such as the SPCA) that has as its principal activity the care of animals and that has requested these accountings in writing. These and other protections were put in place by the State Legislature to protect against fraud and abuse with funds that were intended to provide for much-loved companion animals. For example, a remainder beneficiary (a person who is designated to receive funds remaining upon the animal’s death), an enforcer named in the trust, and animal-care organizations all have the right to check on the animal, inspect the animal’s living situation, and review the financial records of the trust.

The Probate Code mandates that trust income and principal may not be used for any purpose other than the benefit of the animal.

Special Circumstances

In certain situations, you may want to include a special clause in your will or trust to protect the animal(s) from being used for research or testing. You may want to leave a portion of the estate to the SPCA or another animal protection organization.

The Living Trust Solution

A living trust provides all the benefits of a will and none of the drawbacks, and can also be used to ensure your pet will be well cared for. The pet’s trust can be inserted right into your living trust. Living trust services are available for a flat fee that includes a free initial consultation; a package of documents including the living trust, pour-over will, durable powers of attorney, and new deeds; and, perhaps most important, unlimited telephone calls and office visits for trustees and beneficiaries during the process of establishing the trust.

For people who love their companion animals (such as Attorney Malkin, who is the proud companion of 2 dogs and 3 cats), the provisions governing pet trusts are an exciting and welcome addition to our Probate Code.

Attorney Deborah A. Malkin has practiced law in Santa Cruz, California since 1988. She specializes in wills, trusts, and other forms of estate planning, as well as probate matters. Deborah A. Malkin is a Certified Legal Specialist in Estate Planning, Trusts & Probate, certified by the Board of Legal Specialization of the State of California.

Deborah A. Malkin
Attorney at Law

2425 Porter Street, Suite 3
Soquel, CA 95073
831.462.9100
dmalkin@malkintrust.com

Please call for a complimentary initial consultation.

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